United States District Court, E.D. Michigan, Southern Division
K. Majzoub U.S. Magistrate Judge.
1. GRANTING DEFENDANTS HEYNS, STIEVE, HUNTER, BEALS, UPSTON,
WEISS, COULING, WILSON, ROHRIG, KINDER, AND BORGERDING'S
MOTION TO DISMISS ; 2. GRANTING DEFENDANTS COULING AND
WILSON'S MOTION TO DISMISS  3. DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION TO AMEND COMPLAINT  4.
GRANTING DEFENDANTS CORIZON, MILES, SQUIER, LYBARGER,
OULLETTE, BOMMERSHINE'S MOTION TO DISMISS  5.
DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING
ORDER  6. DENYING PLAINTIFF'S MOTION TO SHOW CAUSE
WHY THE MDOC AND CORIZON DEFENDANTS AND/OR THEIR AGENTS
SHOULD NOT BE HELD IN CONTEMPT OF COURT  7. DENYING
DEFENDANTS' MOTION FOR HIPAA DISCLOSURE ORDER
J. Tarnow Senior United States District Judge.
filed his initial complaint on September 14, 2012, alleging
violations of the Eighth Amendment and 42 U.S.C. §1983.
At the time of his filing, Plaintiff was incarcerated at G.
Robert Cotton Correctional Facility (JCF) in Jackson,
Michigan, and is currently incarcerated at the Carson City
Correctional Facility (DRF). Plaintiff filed an Amended
Complaint  on July 23, 2013.
Corizon, Miles, Squier, Lybarger, Oullette, and Bommershine
filed a Motion to Dismiss Counts III-VIII on July 22, 2016
. Plaintiff responded on August 4, 2016 , and
Defendants replied  on August 12, 2016. Defendants
Heyns, Stieve, Hunter, Beals, Upston, Weiss, Couling, Wilson,
Rohrig, Kinder, and Borgerding filed a Motion to Dismiss
 on August 26, 2016. Plaintiff responded  on
September 16, 2016, and Defendants replied  on October
17, 2017. Defendants Couling and Wilson filed a Motion to
Dismiss  on August 11, 2016. Plaintiff responded 
on August 25, 2016, and Defendants replied  on September
12, 2016. Plaintiff filed a supplemental response  to
Defendant's Couling and Wilson's Motion to Dismiss on
October 2, 2016.
Corizon, Miles, Squier, Lybarger, Oullette, and Bommershine
filed a Motion for HIPAA Disclosure Order  on August 4,
2016. Plaintiff responded on August 15, 2016 , and
Defendants replied  on August 24, 2016. Plaintiff filed
a Motion for a Temporary Restraining Order  on February
7, 2017. Defendants filed responses [252; 253] on February
21, 2017. Plaintiff filed a second Motion for Leave to Amend
and Supplement the Complaint pro se  on March
23, 2017. On March 31, 2017, Plaintiff also filed a Motion to
Show Cause why the MDOC and Corizon Defendants and/or their
Agents should not be held in contempt of Court pro
se  and a Motion to Strike Corizon Defendants'
Response, Docket Number 253 .
Court finds the motion suitable for determination without a
hearing with respect to all of Plaintiff's claims, in
accord with Local Rule 7.1(f)(2). For the reasons stated
below, Defendants' Motions to Dismiss [218; 225; 234] are
GRANTED. Defendants Corizon, Miles, Squier,
Lybarger, Oullette, and Bommershine's Motion for HIPAA
Disclosure Order  is DENIED.
Motion to Amend Complaint  is DENIED without
prejudice. Plaintiff may refile a Motion to Amend
that complies with local rule 15.1, and that comports with
the findings of this order as described below.
Plaintiff's Motion to Show Cause why Defendants should
not be held in contempt of Court  and Motion for a
Temporary Restraining Order  are
claims arose while he was confined at the Michigan Department
of Corrections Reception and Guidance Center (RGC), and the
G. Robert Cotton Correction Facility (JCF). At RGC on May 13,
2008, Plaintiff had a special accommodation notice (SAN)
issued without a stop date for, inter alia, an air
mattress. On March 3, 2012, Plaintiff alleges that he was
called to medical at JCF to exchange his air mattress because
his had a hole in it, causing him pain in his hips. However,
when he arrived, he was met by a Defendant Beals, who
allegedly informed Plaintiff that she would not order any
more air mattresses, and that they were not going to hand out
any more air mattresses in the future.
alleges that his SAN for the air mattress, which previously
had no stop date issued, had a stop date issued that day,
despite the fact that Plaintiff alleges he had not seen a
medical practitioner prior to this who ordered this stop
date, in violation of MDOC Policy Directive 04.06.160.
Plaintiff wrote several letters to Defendant agents of the
MDOC, and filed grievances over the next few months about the
situation, all of which were denied. Plaintiff alleges that
the denial of his air mattress has caused him constant pain
and sleep deprivation. His complaint also incorporates claims
based upon the treatment he received for his other serious
medical issues, that include sleep apnea, the removal of
hardware from his left knee, a left knee brace accommodation,
right foot palsy and kidney stones.
is seeking relief from eighteen Defendants, including,
inter alia, agents of the MDOC, the Medical
Contractor company CORIZON, that has contracted with the
State of Michigan to provide health care to inmates, and
employees of CORIZON. Plaintiff's claims are the
following: violations of the Eighth Amendment, due to prison
conditions constituting “cruel and unusual
punishment” and policy/custom/practice that
deliberately denied and/or delayed Plaintiff's access to
required medical care; violations of due process and equal
protection under the Fourteenth Amendment; retaliation under
the First Amendment; civil conspiracy; intentional infliction
of emotional distress; totality of the conditions; and
negligence and/or medical malpractice.
Defendants Corizon, Miles, Squier, Lybarger, Oullette, and
Bommershine Motions to Dismiss Counts III-VIII 
move to dismiss Counts III-VIII of Plaintiff's amended
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). On a Rule 12(b)(6) motion to dismiss, the Court
must “assume the veracity of [the plaintiff's]
well-pleaded factual allegations and determine whether the
plaintiff is entitled to legal relief as a matter of
law.” McCormick v. Miami Univ., 693 F.3d 654,
658 (6th Cir. 2012) (citing Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009); Mayer v. Mylod, 988 F.2d 635,
638 (6th Cir. 1993)).
Count III: Due Process and Equal Protection Claims under the
brings a claim of violation of due process concerning the
removal of Plaintiff's CPAP machine and air mattress.
Defendants challenge this claim on the basis that the remedy
for a prisoner's §1983 deliberate indifference to
serious medical needs is found in the Eighth Amendment, while
a pretrial detainee may find relief in the Fourteenth
Amendment Due Process clause. Phillips v. Roane
County, 534 F.3d 531 (6th Cir. 2008). Plaintiff contends
that this misrepresents the state of the law, and that under
Sandin v. Conner, 515 U.S. 472, 484 (1995), the
Court must ask if the Plaintiff has alleged that
Defendants' actions imposed an atypical and significant
hardship in relation to the ordinary incidents of prison
life. See also Jennings v. Bradley, 419 F. App'x
594, 597 (6th Cir. 2011).
position does not address the argument presented by
Defendants. It is clear that Plaintiff's due process
claim relates to an alleged claim of deliberate indifference
to serious medical needs. In the Sixth Circuit, the Eighth
Amendment's prohibition on cruel and unusual punishment
provides the basis for a §1983 claim of deliberate
indifference to serious medical needs for a prisoner, while
the due process clause protects pretrial detainees. See
e.g. Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th Cir.
2014); Stefan v. Olson, 497 F.App'x 568, 576
(6th Cir. 2012).
the case that Plaintiff cites from the Sixth Circuit to
support his argument did not reflect a due process claim for
deliberate indifference to medical needs, but rather
concerned liberty interests in a challenge to placement in a
Cell Slot Management program as an atypical and significant
hardship, and is therefore not persuasive in this case.
Jennings v. Bradley, 419 F.App'x 594, 597 (6th
Cir. 2011). In Count I Plaintiff has already alleged an
Eighth Amendment violation under the cruel and unusual
punishment theory relating to his medical care, including
denying him access to his CPAP and air mattress. The relief
is properly sought under the Eighth Amendment rather than the
Fourteenth Due Process, and therefore Plaintiff's
Fourteenth Amendment Due Process claim is dismissed as to all
Count III, Plaintiff alleges that the intentional and
deliberate deprivation of his air mattress, while other
similarly situated individuals were allowed an air mattress,
violated his rights under the Equal Protection Clause of the
Fourteenth Amendment. “The Equal Protection Clause
prohibits discrimination by government which burdens a
fundamental right, targets a suspect class, or intentionally
treats one differently than others similarly situated without
any rational basis for the difference.” Bench
Billboard Co. v. City of Toledo, 499 F.App'x 538,
547 (6th Cir. 2012).
undisputed that Plaintiff is not a member of a protected
class; therefore, for his claim to survive, it must be
prevail under a class of one theory. To successfully plead an
equal protection claim as a class of one, Plaintiff must
allege that “[he] and other individuals who were
treated differently were similarly situated in all material
respects.” Id. Additionally, Plaintiff must
show that the governmental entity “treated them
differently without rational basis.” TriHealth,
Inc. v. Bd. of Comm'rs, Hamilton Cty., Ohio, 430
F.3d 783, 788 (6th Cir. 2005).
alleges that he has met this standard by, inter
alia, providing an affidavit from a fellow prisoner who
still has his air mattress. Plaintiff has not done this in
the complaint. To factually plead that a similarly situated
individual was treated differently, Plaintiff relies upon
exhibits to his complaint, constituting an affidavit from a
fellow prisoner who was allowed to have an air mattress was
diagnosed with cancer. [2 at Pg ID 129]. Plaintiff is a
person who underwent hip surgery, while the Affiant is a
cancer patient- these two are not similarly situated with
respect to their need of an air mattress for medical reasons.
Therefore, Plaintiff has not pled facts to support an equal
protection claim and this count is dismissed as to all
Count IV: First Amendment Retaliation as against Defendant
alleges, as to Defendant Miles, that he:
intentionally delay[d], den[ied], and or refuse[d] to treat
Plaintiff's medical needs in retaliation of
Plaintiff's protective conduct, redress of grievance
guaranteed by the [First Amendment], while leaving Plaintiff
in an ‘unnecessary and wanton infliction' of
physical, mental, and emotional pain and suffering and
depriving Plaintiff of sleep.
¶70]. Defendant seeks dismissal of the claim because,
inter alia, it is undisputed that Defendant Miles
did continue to provide medical treatment to Plaintiff after
he filed grievances, and it is also undisputed that the
alleged medical deprivation began before any grievances were
filed, and therefore there is no casual connection.
retaliation claim essentially entails three elements: (1) the
plaintiff engaged in protected conduct; (2) an adverse action
was taken against the plaintiff that would deter a person of
ordinary firmness from continuing to engage in that conduct;
and (3) there is a causal connection between elements one and
two-that is, the adverse action was motivated at least in
part by the plaintiff's protected conduct.”
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999) (en banc).
case, there is no factual allegation addressing causation.
Plaintiff filed his first grievance against Defendant Miles
on July 4, 2011 [1 at ¶74-78]. However, the complaint
alleges that he was deprived of medical care commencing on
June 17, 2011, when Defendant Miles allegedly refused to look
at Plaintiff's medical documentation concerning his need
for removal of hardware from his knee, a knee brace, an AFO
brace and CPAP machine. [1 at ¶¶74-75]. Plaintiff
also alleges that, on June 30, 2011, he learned that, while
Defendant Miles told him at that June 17, 2011 meeting that
he would refer Plaintiff to physical therapy and take other
action concerning his medical complaints, nothing was done
for his health care. [1 at ¶¶76-77]. It was this
initial alleged deprivation of medical care that caused
Plaintiff to file his first grievance against Defendant Miles
on July 4, 2011. [1 at ¶78].
it is undisputed that Defendant Miles did continue to provide
medical care to Plaintiff following his filing of several
grievances against him. Defendant Miles provided Plaintiff
with Vicodin for kidney stone pain, requested a referral to a
urologist, referral to a respiratory therapist, wrote an
order for an AFO, and submitted a request for hardware
removal [1 at ¶¶93, 94, 112, 114, 121, 137, 145].
The fact that Plaintiff alleges that the denial/refusal of
treatment began before the grievances were filed, coupled
with the fact that he continued to receive treatment and
referrals for further medical care by Defendant Miles after
the filing of the grievances, does not support a retaliation
claim because there is no causation pled in the complaint.
These allegations surround a seeming disagreement over the
treatment, and allegations of deliberate indifference over